NDIS Internal and External Review process
Preamble
As our introductory post↗ explains, the information and links we provide here drawn on the advice we received, and the action we chose to take, between late August 2022 and early May 2023.
In late August 2022, we received a courtesy phone call from our local NDIS planner to tell us that later that day Mitchell would be issued with a new plan – we had not asked for a new plan and the end-date of the current plan was a long way off. The NDIA had undertaken an unscheduled review of Mitchell’s supports and cut to his core funding to the point where his care was unsustainable. It was the NDIA’s preference we move Mitchell into a group home with several other people with disability – they have a ‘nice’ name for it, Supported Independent Living.
We vaguely knew there were internal review and an external review processes available to appeal NDIS decisions you don’t agree with. After discussing options with Mitchell’s support coordinator↗, we realised we had three months from the new plan’s start date to lodge a request for an internal review. Armed with that knowledge, we elected to first lodge several Participant Information Access requests.
Participant Information Access
The NDIA presents Participant Information Access↗ (PIA) as “an easier and faster way for you to access your personal information”. It is an alternative to lodging a Freedom of Information (FOI) request↗ that does not cost you. The NDIA aims to respond to a request within 28 days. Our main goal was to access the NDIA’s “reasons for your plan or plan reassessment decision”.
To better unpack the NDIA’s logic (?!) behind their decisions, we lodged three separate PIA requests for:
- Mitchell’s very first plan – we wanted to see how the NDIA started with Mitchell.
- His last well-funded plan – we wanted to see how a plan of this size was justified.
- The current under-funded plan – we wanted to see any change in position or logic.
We had imagined we would receive three separate responses to our separate requests. What we got was one massive PDF document with everything in it … unindexed! 261 pages!? On reading through the document, its structure becomes apparent. There were three parts of the PIA document we found informative.
Access decision data
This part of the document lists NDIS eligibility criteria from section 24 of The NDIS Act↗, and if the participant meets those criteria. We considered the bulk of the recorded responses incorrect.
Update Severity Tools
This is where the “primary condition” of the participant is recorded. We did not object to what was recorded, but it was clear very little information made its way from allied health practitioner (OT, psychologist) reports into the NDIA’s core systems. This was frustrating given the NDIA’s insistence for regular updates of these reports.
Planning conversation tool
This section of the PIA document was the most useful and the hardest to decode. There is a lot of repeated commentary in this section, with newer entries added on top of old ones. It was in this section that we discovered (for the first time!) that the NDIA had decided years ago to cut Mitchell’s funding and that their preference was for him to have “shared supports” (read, live in a group home). This information gave us a focus for the material we pulled together for the internal review.
There was information redacted (blanked out) in the PIA document. We believe this was mainly people’s names.
The internal review
Section 100 of NDIS Act provides participants with the right to ask for certain decisions the NDIA makes to be reviewed. An internal review↗ is also referred to as a “Review of a decision” or an s100 review. The review request has to be lodged within 3 months of the NDIA telling you a decision you want reviewed. Also, you cannot request an external review till the internal review is completed.
To be honest, we started preparing for the internal review while waiting for the PIA document to arrive. In terms of what we pulled together to accompany the NDIA’s “Request for a Review of a Decision form” – we went big! We got updated material from every relevant source:
- Mitchell’s core allied health team – Occupational Therapist, Psychologist, and Speech and Language Pathologist (SLP)
- Chew/swallow SLP and dietitian
- A carer’s statement
- Support Coordination Statement
- GP report on the health and well-being of Mitchell’s parents
- The NDIA’s home and living supporting evidence form
- Medical report that confirmed the lifelong nature of Mitchell’s disability
- A quote from a service provider for the level of support we were seeking
On the last point, of course we don’t use a service provider. However, we had received advice at the time that the NDIA looked more favourably on a quote from a registered service provider. We used this to set the benchmark for the level of support we wanted for Mitchell. The core allied health team, in particular, understood the insights we had drawn from the PIA process. We asked them to be clear on their professional insights and recommendations on these points.
We would have added other reports to this suite of documents – for example, neurologist and psychiatrist – however we had to get everything together and submitted within the three-month deadline (which was late November 2022).
We got the internal review decision a week or so later. In hindsight, the result was not surprising, though at the time it was disappointing – “The outcome of the internal review … confirmed the original decision is correct.” The NDIA was not changing its mind.
Two last observations about the internal review:
- We realised in the external review process that being thorough with your internal review supporting documentation was a big plus as it formed a solid starting point for the external review.
- We started talking to a lot of NDIA staff at this point. A friend’s advice proved very valuable. In this kind of discussion, never NEVER talk to an NDIA representative alone. There should be at least two of you, to confirm what was said. And you should take copious notes from your conversations. We received contradictory advice at times, and were told things that did not seem to accord with the NDIS Act.
The external review – the AAT
There appears to be little information on the NDIS website about pursuing an external review of a decision↗ at the Administrative Appeals Tribunal (AAT)↗. There is, however, a fair amount of information available on other websites:
- If you are a member of the Facebook group NDIS Grassroots Discussion↗ there are a number of documents in the Files section. “HOW TO RUN AN AAT MATTER.docx” in particular.
- Disability Services Consulting (DSC) have a free resource, Navigating the Administrative Appeals Tribunal (AAT)↗.
- Queensland Advocacy for Inclusion↗ has some excellent resources on its website. There are a comprehensive set of downloadable fact sheets on the NDIS Resources↗ page. Their “Template Table of evidence” is an excellent guide on the issues you should address in the external review process – these are the kind of questions your experts – allied health professionals – will need to respond to, along with questions posed by the NDIA.
- The Australian Government’s Department of Social Services (DSS) provides information, see their NDIS Appeals Program↗ webpage.
You have 28 days from when you were advised the outcome of the internal review to request an external review with the AAT. The actual request does not need to be elaborate, you just need to say you disagree with the internal review decision.
Once the NDIA is advised by AAT of your application it will provide the AAT and you with a set of T-documents (T-docs) or Tribunal documents. The T-docs should contain most, if not all, of the material you supplied to support the internal review request. It should also contain the internal review decision, your AAT application, and relevant sections of the NDIS Act, relevant NDIS Rules and Operational Guidelines.
Read through the T-docs – ours ran to 239 pages! We found the NDIA neglected to include parts of our attachments to the internal review, making it difficult for others to understand the case we were making for restoring Mitchell’s core supports. We corrected those, and other, oversights.
Case conferences form the bulk of the mediation process you have to go through before actually ‘appearing before’ a Tribunal hearing. They are meetings that can be conducted face-to-face or over the phone. Present are the applicant (the one applying to the AAT) and advocate, the respondent (the one responding to the application to the AAT, usually one or more lawyers representing the NDIA and perhaps an NDIA rep), and the AAT Registrar. The first case conference focuses on the respondent’s “statement of issues”, which lists the further evidence the respondent wants to see.
The respondent’s lawyer takes you thought this cycle of case conference / statement / response (the merry-go-round!) as many times as you have the energy for. They are lawyers, their job is to represent and defend the interest of their client, the NDIA. They will do that with the tools at their disposal, including procedural fatigue – they will exhaust you with questions, tasks you have to do … the list goes on. It is worth going through the cycle at least once, to see the initial statement of issues and understand the respondent’s logic and approach to winning. Remember, all their questions and issues will steer you back to what the NDIA wants to achieve – in our son’s case, it was shared supports and the cotenancy that implies.
At an AAT hearing, the chairing member’s approach is called ‘de novo↗‘ … it essentially ignores all of the NDIA’s logic and arguements, and considers your case as if for the very first time.
If you and your advocate think the material you have compiled addresses section 34 of the NDIS Act and the NDIS Rules well, you have the right to tell the case conference Registrar you want to proceed to a hearing.
We never got past the first case conference, as an Independent Expert Review (see below) provided the result we wanted.
What helped the most
The most valuable thing we did at this stage was securing the assistance of an experienced advocate to guide us through the external review process. The DSS funds a number of organisations across Australia to provide NDIS advocacy services, see this link↗. The AskIssy Disability Advocacy Finder↗ is lets you search by post code.
When we went looking for advocacy support (December 2022 and January 2023), all the funded agencies in our area were at capacity. A knowledgeable friend supported us through our first case conference, and we accessed free phone consultation sessions with Legal Aid Queensland↗. During the phone consultation sessions, we were encouraged to apply for legal aid support for Mitchell. In March 2023 we were successful in gaining access to a Legal Aid solicitor at no cost to us. Their guidance and expertise made an enormous difference.
Being a pest
Once it was clear we had to go to the AAT, we started writing letters to politicians, letting them know we were far from pleased. The Minister for the NDIS, Bill Shorten↗, heard from us. As did the Chair of the NDIS Board, Kurt Fearnley↗. We also wrote to our Federal and State local members and the Queensland Minister for Disability, Craig Crawford↗. We even wrote to the WA Senator, Jordon Steele-John↗.
Just about every letter made its way to the NDIA and resulted in a phone call to us from a staff member. Though the conversations provided little useful information, the most valuable thing that we believe came from our efforts was the NDIA flagged our case as urgent. When it looked like we were going to be delayed as the AAT’s Brisbane office was at capacity, we were bounced down to the AAT’s Sydney office.
The external review – the Independent Expert
The Independent Expert Review (IER) program↗ was established by Bill Shorten as a mechanism to deal with the massive backlog of NDIS cases at the AAT. It is only open to participants with an active AAT case.
An independent ‘expert’ reviews the material supplied to the AAT (the T-docs) and other material you supply, and interviews you if you wish. They produce a report with recommendations relating to your AAT case. The NDIA more-or-less agrees to implement those recommendations if you wish. The expert’s report and recommendations are only advanced if you wish to do so. If you don’t like the recommendations, the report can be ignored and the current AAT process running in parallel continues.
We found the expert was knowledgeable and considerate, and ‘got’ our son. Their recommendations were agreeable, we accepted them and supplied their report to the NDIA and its solicitor.
The IER agreement is signed by 3 parties – you, the NDIA, and the independent expert. Just be aware, the expert very likely has another agreement with the NDIA that you have not seen that places additional obligations on the expert and gives additional rights to the NDIA. We saw this other agreement in play when the NDIA elected to pause the IER process to “reassess its position in the light of new information” we provided to the expert. This unexpected pause slowed things down, but didn’t impact the outcome.
Once the Independent Expert’s report and recommendations were provided to the NDIA, Mitchell’s Legal Aid solicitor drafted a 42C agreement and provided it to the NDIA’s solicitor. The agreement bounced back and forth for a while to sort out the exact wording, and then it was finally signed. We found the NDIA’s solicitor fought to the last to get clauses into the agreement that would be favourable to their client.
A 42C agreement is drawn from section 42C of the AAT Act. It is an agreement the respondent and applicant sign to indicate the AAT case is settled. The AAT then issues a legal direction to the NDIA to lay aside its previous decision (the one you are fighting about!) and implement the agreement.
Mitchell’s new NDIS Plan – with all the agreed supports – arrived a few weeks later.
Closing comments
There are a lot of things that can happen in both the internal and external review process that are not covered here, as we did not experience them.
At AAT, there can be a conciliation meeting↗ before actually appearing before the Tribunal. We thought at one point we would need a 42D agreement – a kind of plan extension – to make sure Mitchell’s support did not run out while the matter was still before the AAT. Working our way through both review processes did consume Mitchell’s available NDIS funding faster than we planned. The only thing Mitchell’s plan could not pay for were the medical reports – from the GP, psychiatrist, geneticist, etc.
The thing is we got there, we didn’t give up hope, and we eventually got the outcome Mitchell needed.
There is a flowchart version of this whole process which can be downloaded below.
Any questions, just ask via the email address at the bottom of this page.
The AAT has published it’s own explanation of how NDIS Reviews are handled, see here↗. A speech delivered by a former President of the AAT in 2006 even includes a flowchart of it’s dispute resolution process, see here↗.
In mid-June 2023 we became aware that the NDIS is discontinuing it’s Independent Expert Review (IER) trial↗ on 30 June. It is unclear what will replace it.